410 U.S.

113
93 S.Ct. 705
35 L.Ed.2d 147

Jane ROE, et al., Appellants,

v.
Henry WADE.
No. 70-18.
Argued Dec. 13, 1971.
Reargued Oct. 11, 1972.
Decided Jan. 22, 1973.
Rehearing Denied Feb. 26, 1973.

See 410 U.S. 959, 93 S.Ct. 1409.

Syllabus
A pregnant single woman (Roe) brought a class action challenging the
constitutionality of the Texas criminal abortion laws, which proscribe
procuring or attempting an abortion except on medical advice for the
purpose of saving the mother's life. A licensed physician (Hallford), who
had two state abortion prosecutions pending against him, was permitted to
intervene. A childless married couple (the Does), the wife not being
pregnant, separately attacked the laws, basing alleged injury on the future
possibilities of contraceptive failure, pregnancy, unpreparedness for
parenthood, and impairment of the wife's health. A three-judge District
Court, which consolidated the actions, held that Roe and Hallford, and
members of their classes, had standing to sue and presented justiciable
controversies. Ruling that declaratory, though not injunctive, relief was
warranted, the court declared the abortion statutes void as vague and
overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment
rights. The court ruled the Does' complaint not justiciable. Appellants
directly appealed to this Court on the injunctive rulings, and appellee
cross-appealed from the District Court's grant of declaratory relief to Roe
and Hallford. Held:
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from
the grant or denial of declaratory relief alone, review is not foreclose

when the case is properly before the Court on appeal from specific denial
of injunctive relief and the arguments as to both injunctive and declaratory
relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's
pregnancy did not moot her suit. Litigation involving pregnancy, which is
'capable of repetition, yet evading review,' is an exception to the usual
federal rule that an actual controversy must exist at review stages and not
simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting
declaratory, relief to Hallford, who alleged no federally protected right not
assertable as a defense against the good-faith state prosecutions pending
against him. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d
688. Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more
of which may not occur, is too speculative to present an actual case or
controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from
criminality only a life-saving procedure on the mother's behalf without
regard to the stage of her pregnancy and other interests involved violate
the Due Process Clause of the Fourteenth Amendment, which protects
against state action the right to privacy, including a woman's qualified
right to terminate her pregnancy. Though the State cannot override that
right, it has legitimate interests in protecting both the pregnant woman's
health and the potentiality of human life, each of which interests grows
and reaches a 'compelling' point at various stages of the woman's
approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment
of the pregnant woman's attending physician. Pp. 163-164.
(b) For the stage subsequent to approximately the end of the first
trimester, the State, in promoting its interest in the health of the mother,
may, if it chooses, regulate the abortion procedure in ways that are
reasonably related to maternal health. Pp. 163-164.
(c) For the stage subsequent to viability the State, in promoting its interest
in the potentiality of human life, may, if it chooses, regulate, and even

proscribe, abortion except where necessary, in appropriate medical

judgment, for the preservation of the life or health of the mother. Pp. 163164; 164165.
4. The State may define the term 'physician' to mean only a physician
currently licensed by the State, and may proscribe any abortion by a
person who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas
authorities will doubtless fully recognize the Court's ruling that the Texas
criminal abortion statutes are unconstitutional. P. 166.
314 F.Supp. 1217, affirmed in part and reversed in part.
Sarah R. Weddington, Austin, Tex., for appellants.
Robert C. Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee
on reargument.
Jay Floyd, Asst. Atty. Gen., Austin, Tex., for appellee on original
argument.
Mr. Justice BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S.
179, 93 S.Ct. 739, 35 L.Ed.2d 201, present constitutional challenges to state
criminal abortion legislation. The Texas statutes under attack here are typical of
those that have been in effect in many States for approximately a century. The
Georgia statutes, in contrast, have a modern cast and are a legislative product
that, to an extent at least, obviously reflects the influences of recent attitudinal
change, of advancing medical knowledge and techniques, and of new thinking
about an old issue.

We forthwith acknowledge our awareness of the sensitive and emotional nature

of the abortion controversy, of the vigorous opposing views, even among
physicians, and of the deep and seemingly absolute convictions that the subject
inspires. One's philosophy, one's experiences, one's exposure to the raw edges
of human existence, one's religious training, one's attitudes toward life and
family and their values, and the moral standards one establishes and seeks to
observe, are all likely to influence and to color one's thinking and conclusions
about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to

complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free

of emotion and of predilection. We seek earnestly to do this, and, because we
do, we have inquired into, and in this opinion place some emphasis upon,
medical and medical-legal history and what that history reveals about man's
attitudes toward the abortion procedure over the centuries. We bear in mind,
too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner
v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905):

'(The Constitution) is made for people of fundamentally differing views, and

the accident of our finding certain opinions natural and familiar, or novel, and
even shocking, ought not to conclude our judgment upon the question whether
statutes embodying them conflict with the Constitution of the United States.'

* The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the
State's Penal Code,1 Vernon's Ann.P.C. These make it a crime to 'procure an
abortion,' as therein defined, or to attempt one, except with respect to 'an
abortion procured or attempted by medical advice for the purpose of saving the
life of the mother.' Similar statutes are in existence in a majority of the States.2

Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49,
1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon
modified into language that has remained substantially unchanged to the
present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal,
Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541
(1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each
of these compilations provided the same exception, as does the present Article
1196, for an abortion by 'medical advice for the purpose of saving the life of
the mother.'3

II
8

Jane Roe,4 a single woman who was residing in Dallas County, Texas,
instituted this federal action in March 1970 against the District Attorney of the
county. She sought a declaratory judgment that the Texas criminal abortion
statutes were unconstitutional on their face, and an injunction restraining the
defendant from enforcing the statutes.

Roe alleged that she was unmarried and pregnant; that she wished to terminate

her pregnancy by an abortion 'performed by a competent, licensed physician,

under safe, clinical conditions'; that she was unable to get a 'legal' abortion in
Texas because her life did not appear to be threatened by the continuation of her
pregnancy; and that she could not afford to travel to another jurisdiction in
order to secure a legal abortion under safe conditions. She claimed that the
Texas statutes were unconstitutionally vague and that they abridged her right of
personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments. By an amendment to her complaint Roe purported to sue 'on
behalf of herself and all other women' similarly situated.
10

James Hubert Hallford, a licensed physician, sought and was granted leave to
intervene in Roe's action. In his complaint he alleged that he had been arrested
previously for violations of the Texas abortion statutes and that two such
prosecutions were pending against him. He described conditions of patients
who came to him seeking abortions, and he claimed that for many cases he, as
a physician, was unable to determine whether they fell within or outside the
exception recognized by Article 1196. He alleged that, as a consequence, the
statutes were vague and uncertain, in violation of the Fourteenth Amendment,
and that they violated his own and his patients' rights to privacy in the doctorpatient relationship and his own right to practice medicine, rights he claimed
were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments.

11

John and Mary Doe,5 a married couple, filed a companion complaint to that of
Roe. They also named the District Attorney as defendant, claimed like
constitutional deprivations, and sought declaratory and injunctive relief. The
Does alleged that they were a childless couple; that Mrs. Doe was suffering
from a 'neural-chemical' disorder; that her physician had 'advised her to avoid
pregnancy until such time as her condition has materially improved' (although a
pregnancy at the present time would not present 'a serious risk' to her life); that,
pursuant to medical advice, she had discontinued use of birth control pills; and
that if she should become pregnant, she would want to terminate the pregnancy
by an abortion performed by a competent, licensed physician under safe,
clinical conditions. By an amendment to their complaint, the Does purported to
sue 'on behalf of themselves and all couples similarly situated.'

12

The two actions were consolidated and heard together by a duly convened
three-judge district court. The suits thus presented the situations of the pregnant
single woman, the childless couple, with the wife not pregnant, and the licensed
practicing physician, all joining in the attack on the Texas criminal abortion
statutes. Upon the filing of affidavits, motions were made for dismissal and for
summary judgment. The court held that Roe and members of her class, and Dr.

Hallford, had standing to sue and presented justiciable controversies, but that
the Does had failed to allege facts sufficient to state a present controversy and
did not have standing. It concluded that, with respect to the requests for a
declaratory judgment, abstention was not warranted. On the merits, the District
Court held that the 'fundamental right of single women and married persons to
choose where to have children is protected by the Ninth Amendment, through
the Fourteenth Amendment,' and that the Texas criminal abortion statutes were
void on their face because they were both unconstitutionally vague and
constituted an overbroad infringement of the plaintiffs' Ninth Amendment
rights. The court then held that abstention was warranted with respect to the
requests for an injunction. It therefore dismissed the Does' complaint, declared
the abortion statutes void, and dismissed the application for injunctive relief.
314 F.Supp. 1217, 1225 (N.D.Tex.1970).
13

The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C.
1253, have appealed to this Court from that part of the District Court's
judgment denying the injunction. The defendant District Attorney has
purported to cross-appeal, pursuant to the same statute, from the court's grant of
declaratory relief to Roe and Hallford. Both sides also have taken protective
appeals to the United States Court of Appeals for the Fifth Circuit. That court
ordered the appeals held in abeyance pending decision here. We postponed
decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct.
1610, 29 L.Ed. 108 (1971).

III
14

It might have been preferable if the defendant, pursuant to our Rule 20, had
presented to us a petition for certiorari before judgment in the Court of Appeals
with respect to the granting of the plaintiffs' prayer for declaratory relief. Our
decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378
(1970), and Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26
L.Ed.2d 684 (1970), are to the effect that 1253 does not authorize an appeal to
this Court from the grant or denial of declaratory relief alone. We conclude,
nevertheless, that those decisions do not foreclose our review of both the
injunctive and the declaratory aspects of a case of this kind when it is property
here, as this one is, on appeal under 1253 from specific denial of injunctive
relief, and the arguments as to both aspects are necessarily identical. See Carter
v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida
Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73; 80-81, 80 S.Ct.
568, 573-574, 4 L.Ed.2d 568 (1960). It would be destructive of time and energy
for all concerned were we to rule otherwise. Cf. Doe v. Bolton, 410 U.S. 179,
93 S.Ct. 739, 35 L.Ed.2d 201.

IV
15

We are next confronted with issues of justiciability, standing, and abstention.

Have Roe and the Does established that 'personal stake in the outcome of the
controversy,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d
663 (1962), that insures that 'the dispute sought to be adjudicated will be
presented in an adversary context and in a form historically viewed as capable
of judicial resolution,' Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953,
20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct.
1361, 1364, 31 L.Ed.2d 636 (1972)? And what effect did the pendency of
criminal abortion charges against Dr. Hallford in state court have upon the
propriety of the federal court's granting relief to him as a plaintiff-intervenor?
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe
is a fictitious person. For purposes of her case, we accept as true, and as
established, her existence; her pregnant state, as of the inception of her suit in
March 1970 and as late as May 21 of that year when she filed an alias affidavit
with the District Court; and her inability to obtain a legal abortion in Texas.

16

Viewing Roe's case as of the time of its filing and thereafter until as late as
May, there can be little dispute that it then presented a case or controversy and
that, wholly apart from the class aspects, she, as a pregnant single woman
thwarted by the Texas criminal abortion laws, had standing to challenge those
statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v.
Breckenridge, 446 F.2d 833, 8380-839 (CA6 1971); Poe v. Menghini, 339
F.Supp. 986, 990-991 (D.C.Kan. 1972). See Truax v. Raich, 239 U.S. 33, 36
S.Ct. 7, 60 L.Ed. 131 (1951). Indeed, we do not read the appellee's brief as
really asserting anything to the contrary. The 'logical nexus between the status
asserted and the claim sought to be adjudicated,' Flast v. Cohen, 392 U.S., at
102, 88 S.Ct., at 1953, and the necessary degree of contentiousness, Golden v.
Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both present.

17

The appellee notes, however, that the record does not disclose that Roe was
pregnant at the time of the District Court hearing on May 22, 1970,6 or on the
following June 17 when the court's opinion and judgment were filed. And he
suggests that Roe's case must now be moot because she and all other members
of her class are no longer subject to any 1970 pregnancy.

18

The usual rule in federal cases is that an actual controversy must exist at stages
of appellate or certiorari review, and not simply at the date the action is
initiated. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95
L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for
Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).

19

But when, as here, pregnancy is a significant fact in the litigation, the normal
266-day human gestation period is so short that the pregnancy will come to
term before the usual appellate process is complete. If that termination makes a
case moot, pregnancy litigation seldom will survive much beyond the trial
stage, and appellate review will be effectively denied. Our law should not be
that rigid. Pregnancy often comes more than once to the same woman, and in
the general population, if man is to survive, it will always be with us.
Pregnancy provides a classic justification for a conclusion of nonmootness. It
truly could be 'capable of repetition, yet evading review.' Southern Pacific
Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310
(1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23
L.Ed.2d 1 (1969); Carroll v. President and Commissioners of Princess Anne,
393 U.S. 175, 178-179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United
States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97
L.Ed. 1303 (1953).

20

We, therefore, agree with the District Court that Jane Roe had standing to
undertake this litigation, that she presented a justiciable controversy, and that
the termination of her 1970 pregnancy has not rendered her case moot.

21

B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as

a plaintiff-intervenor, alleging in his complaint that he:

22

'(I)n the past has been arrested for violating the Texas Abortion Laws and at
the present time stands charged by indictment with violating said laws in the
Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas
vs.

23

James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H.
Hallford, No. C-69-2524-H. In both cases the defendant is charged with
abortion . . .'

24

In his application for leave to intervene, the doctor made like representations as
to the abortion charges pending in the state court. These representations were
also repeated in the affidavit he executed and filed in support of his motion for
summary judgment.

25

Dr. Hallford is, therefore, in the position of seeking, in a federal court,

declaratory and injunctive relief with respect to the same statutes under which
he stands charged in criminal prosecutions simultaneously pending in state
court. Although he stated that he has been arrested in the past for violating the

State's abortion laws, he makes no allegation of any substantial and immediate

threat to any federally protected right that cannot be asserted in his defense
against the state prosecutions. Neither is there any allegation of harassment or
bad-faith prosecution. In order to escape the rule articulated in the cases cited in
the next paragraph of this opinion that, absent harassment and bad faith, a
defendant in a pending state criminal case cannot affirmatively challenge in
federal court the statutes under which the State is prosecuting him, Dr. Hallford
seeks to distinguish his status as a present state defendant from his status as a
'potential future defendant' and to assert only the latter for standing purposes
here.
26

We see no merit in that distinction. Our decision in Samuels v. Mackell, 401

U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), compels the conclusion that the
District Court erred when it granted declaratory relief to Dr. Hallford instead of
refraining from so doing. The court, of course, was correct in refusing to grant
injunctive relief to the doctor. The reasons supportive of that action, however,
are those expressed in Samuels v. Mackell, supra, and in Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S.
77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91
S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91
S.Ct. 777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380 U.S.
479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We note, in passing, that Younger
and its companion cases were decided after the three-judge District Court
decision in this case.

27

Dr. Hallford's complaint in intervention, therefore, is to be dismissed.7 He is

remitted to his defenses in the state criminal proceedings against him. We
reverse the judgment of the District Court insofar as it granted Dr. Hallford
relief and failed to dismiss his complaint in intervention.

28

C. The Does. In view of our ruling as to Roe's standing in her case, the issue of
the Does' standing in their case has little significance. The claims they assert
are essentially the same as those of Roe, and they attack the same statutes.
Nevertheless, we briefly note the Does' posture.

29

Their pleadings present them as a childless married couple, the woman not
being pregnant, who have no desire to have children at this time because of
their having received medical advice that Mrs. Doe should avoid pregnancy,
and for 'other highly personal reasons.' But they 'fear . . . they may face the
prospect of becoming parents.' And if pregnancy ensues, they 'would want to
terminate' it by an abortion. They assert an inability to obtain an abortion
legally in Texas and, consequently, the prospect of obtaining an illegal abortion

there or of going outside Texas to some place where the procedure could be
obtained legally and competently.
30

We thus have as plaintiffs a married couple who have, as their asserted

immediate and present injury, only an alleged 'detrimental effect upon (their)
marital happiness' because they are forced to 'the choice of refraining from
normal sexual relations or of endangering Mary Doe's health through a possible
pregnancy.' Their claim is that sometime in the future Mrs. Doe might become
pregnant because of possible failure of contraceptive measures, and at that time
in the future she might want an abortion that might then be illegal under the
Texas statutes.

31

This very phrasing of the Does' position reveals its speculative character. Their
alleged injury rests on possible future contraceptive failure, possible future
pregnancy, possible future unpreparedness for parenthood, and possible future
impairment of health. Any one or more of these several possibilities may not
take place and all may not combine. In the Does' estimation, these possibilities
might have some real or imagined impact upon their marital happiness. But we
are not prepared to say that the bare allegation of so indirect an injury is
sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S.,
at 41-42, 91 S.Ct., at 749; Golden v. Zwickler, 394 U.S., at 109-110, 89 S.Ct.,
at 960; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446
F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the
cases that the Does urge upon us, namely, investment Co. Institute v. Camp,
401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Association of Data
Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25
L.Ed.2d 184 (1970); and Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21
L.Ed.2d 228 (1968). See also Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed.
131 (1915).

32

The Does therefore are not appropriate plaintiffs in this litigation. Their
complaint was properly dismissed by the District Court, and we affirm that
dismissal.

V
33

The principal thrust of appellant's attack on the Texas statutes is that they
improperly invade a right, said to be possessed by the pregnant woman, to
choose to terminate her pregnancy. Appellant would discover this right in the
concept of personal 'liberty' embodied in the Fourteenth Amendment's Due
Process Clause; or in personal marital, familial, and sexual privacy said to be
protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut,

381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405
U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White, J.,
concurring in result); or among those rights reserved to the people by the Ninth
Amendment, Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682
(Goldberg, J., concurring). Before addressing this claim, we feel it desirable
briefly to survey, in several aspects, the history of abortion, for such insight as
that history may afford us, and then to examine the state purposes and interests
behind the criminal abortion laws.
VI
34

It perhaps is not generally appreciated that the restrictive criminal abortion laws
in effect in a majority of States today are of relatively recent vintage. Those
laws, generally proscribing abortion or its attempt at any time during pregnancy
except when necessary to preserve the pregnant woman's life, are not of ancient
or even of common-law origin. Instead, they derive from statutory changes
effected, for the most part, in the latter half of the 19th century.

35

1. Ancient attitudes. These are not capable of precise determination. We are

told that at the time of the Persian Empire abortifacients were known and that
criminal abortions were severely punished.8 We are also told, however, that
abortion was practiced in Greek times as well as in the Roman Era,9 and that 'it
was resorted to without scruple.'10 The Ephesian, Soranos, often described as
the greatest of the ancient gynecologists, appears to have been generally
opposed to Rome's prevailing free-abortion practices. He found it necessary to
think first of the life of the mother, and he resorted to abortion when, upon this
standard, he felt the procedure advisable.11 Greek and Roman law afforded little
protection to the unborn. If abortion was prosecuted in some places, it seems to
have been based on a concept of a violation of the father's right to his offspring.
Ancient religion did not bar abortion.12

36

2. The Hippocratic Oath. What then of the famous Oath that has stood so long
as the ethical guide of the medical profession and that bears the name of the
great Greek (460(?)-377(?) B.C.), who has been described as the Father of
Medicine, the 'wisest and the greatest practitioner of his art,' and the 'most
important and most complete medical personality of antiquity,' who dominated
the medical schools of his time, and who typified the sum of the medical
knowledge of the past?13 The Oath varies somewhat according to the particular
translation, but in any translation the content is clear: 'I will give no deadly
medicine to anyone if asked, nor suggest any such counsel; and in like manner I
will not give to a woman a pessary to produce abortion,'14 or 'I will neither give
a deadly drug to anybody if asked for it, nor will I make a suggestion to this

effect. Similarly, I will not give to a woman an abortive remedy.'15

37

Although the Oath is not mentioned in any of the principal briefs in this case or
in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the
apex of the development of strict ethical concepts in medicine, and its influence
endures to this day. Why did not the authority of Hippocrates dissuade abortion
practice in his time and that of Rome? The late Dr. Edelstein provides us with a
theory:16 The Oath was not uncontested even in Hippocrates' day; only the
Pythagorean school of philosophers frowned upon the related act of suicide.
Most Greek thinkers, on the other hand, commended abortion, at least prior to
viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the
Pythagoreans, however, it was a matter of dogma. For them the embryo was
animate from the moment of conception, and abortion meant destruction of a
living being. The abortion clause of the Oath, therefore, 'echoes Pythagorean
doctrines,' and '(i)n no other stratum of Greek opinion were such views held or
proposed in the same spirit of uncompromising austerity.'17

38

Dr. Edelstein then concludes that the Oath originated in a group representing
only a small segment of Greek opinion and that it certainly was not accepted by
all ancient physicians. He points out that medical writings down to Galen (A.D.
130-200) 'give evidence of the violation of almost every one of its
injunctions.'18 But with the end of antiquity a decided change took place.
Resistance against suicide and against abortion became common. The Oath
came to be popular. The emerging teachings of Christianity were in agreement
with the Phthagorean ethic. The Oath 'became the nucleus of all medical ethics'
and 'was applauded as the embodiment of truth.' Thus, suggests Dr. Edelstein, it
is 'a Pythagorean manifesto and not the expression of an absolute standard of
medical conduct.'19

39

This, it seems to us, is a satisfactory and acceptable explanation of the

Hippocratic Oath's apparent rigidity. It enables us to understand, in historical
context, a long-accepted and reversed statement of medical ethics.

40

3. The common law. It is undisputed that at common law, abortion performed

before 'quickening'-the first recognizable movement of the fetus in utero,
appearing usually from the 16th to the 18th week of pregnancy20-was not an
indictable offense.21 The absence of a common-law crime for pre-quickening
abortion appears to have developed from a confluence of earlier philosophical,
theological, and civil and canon law concepts of when life begins. These
disciplines variously approached the question in terms of the point at which the
embryo or fetus became 'formed' or recognizably human, or in terms of when a
'person' came into being, that is, infused with a 'soul' or 'animated.' A loose

concensus evolved in early English law that these events occurred at some
point between conception and live birth.22 This was 'mediate animation.'
Although Christian theology and the canon law came to fix the point of
animation at 40 days for a male and 80 days for a female, a view that persisted
until the 19th century, there was otherwise little agreement about the precise
time of formation or animation. There was agreement, however, that prior to
this point the fetus was to be regarded as part of the mother, and its destruction,
therefore, was not homicide. Due to continued uncertainty about the precise
time when animation occurred, to the lack of any empirical basis for the 40-80day view, and perhaps to Aquinas' definition of movement as one of the two
first principles of life, Bracton focused upon quickening as the critical point.
The significance of quickening was echoed by later common-law scholars and
found its way into the received common law in this country.
41

Whether abortion of a quick fetus was a felony at common law, or even a lesser
crime, is still disputed. Bracton, writing early in the 13th century, thought it
homicide. 23 But the later and predominant view, following the great commonlaw scholars, has been that it was, at most, a lesser offense. In a frequently cited
passage, Coke took the position that abortion of a woman 'quick with childe' is
'a great misprision, and no murder.'24 Blackstone followed, saying that while
abortion after quickening had once been considered manslaughter (though not
murder), 'modern law' took a less severe view.25 A recent review of the
common-law precedents argues, however, that those precedents contradict
Coke and that even post-quickening abortion was never established as a
common-law crime.26 This is of some importance because while most
American courts ruled, in holding or dictum, that abortion of an unquickened
fetus was not criminal under their received common law, 27 others followed
Coke in stating that abortion of a quick fetus was a 'misprision,' a term they
translated to mean 'misdemeanor.'28 That their reliance on Coke on this aspect
of the law was uncritical and, apparently in all the reported cases, dictum (due
probably to the paucity of common-law prosecutions for post-quickening
abortion), makes it now appear doubtful that abortion was ever firmly
established as a common-law crime even with respect to the destruction of a
quick fetus.

42

4. The English statutory law. England's first criminal abortion statute, Lord
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick
fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony
of abortion before quickening, and thus preserved the 'quickening' distinction.
This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31,
13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4
& 1 Vict., c. 85, 6, and did not reappear in the Offenses Against the Person

Act of 1861, 24 & 25 Vict., c. 100, 59, that formed the core of English antiabortion law until the liberalizing reforms of 1967. In 1929, the Infant Life
(Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was
upon the destruction of 'the life of a child capable of being born alive.' It made a
willful act performed with the necessary intent a felony. It contained a proviso
that one was not to be found guilty of the offense 'unless it is proved that the act
which caused the death of the child was not done in good faith for the purpose
only of preserving the life of the mother.'
43

A seemingly notable development in the English law was the case of Rex v.
Bourne, (1939) 1 K.B. 687. This case apparently answered in the affirmative
the question whether an abortion necessary to preserve the life of the pregnant
woman was excepted from the criminal penalties of the 1861 Act. In his
instructions to the jury, Judge MacNaghten referred to the 1929 Act, and
observed that that Act related to 'the case where a child is killed by a willful act
at the time when it is being delivered in the ordinary course of nature.' Id., at
691. He concluded that the 1861 Act's use of the word 'unlawfully,' imported
the same meaning expressed by the specific proviso in the 1929 Act, even
though there was no mention of preserving the mother's life in the 1861 Act. He
then construed the phrase 'preserving the life of the mother' broadly, that is, 'in
a reasonable sense,' to include a serious and permanent threat to the mother's
health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a
good-faith belief that the abortion was necessary for this purpose. Id., at 693694. The jury did acquit.

44

Recently, Parliament enacted a new abortion law. This is the Abortion Act of
1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an
abortion where two other licensed physicians agree (a) 'that the continuance of
the pregnancy would involve risk to the life of the pregnant woman, or of injury
to the physical or mental health of the pregnant woman or any existing children
of her family, greater than if the pregnancy were terminated,' or (b) 'that there is
a substantial risk that if the child were born it would suffer from such physical
or mental abnormalities as to be seriously handicapped.' The Act also provides
that, in making this determination, 'account may be taken of the pregnant
woman's actual or reasonably foreseeable environment.' It also permits a
physician, without the concurrence of others, to terminate a pregnancy where he
is of the good-faith opinion that the abortion 'is immediately necessary to save
the life or to prevent grave permanent injury to the physical or mental health of
the pregnant woman.'

45

5. The American law. In this country, the law in effect in all but a few States
until mid-19th century was the pre-existing English common law. Connecticut,

the first State to enact abortion legislation, adopted in 1821 that part of Lord
Ellenborough's Act that related to a woman 'quick with child.'29 The death
penalty was not imposed. Abortion before quickening was made a crime in that
State only in 1860.30 In 1828, New York enacted legislation31 that, in two
respects, was to serve as a model for early anti-abortion statutes. First, while
barring destruction of an unquickend fetus as well as a quick fetus, it made the
former only a misdemeanor, but the latter second-degree manslaughter. Second,
it incorporated a concept of therapeutic abortion by providing that an abortion
was excused if it 'shall have been necessary to preserve the life of such mother,
or shall have been advised by two physicians to be necessary for such purpose.'
By 1840, when Texas had received the common law,32 only eight American
States had statutes dealing with abortion.33 It was not until after the War
Between the States that legislation began generally to replace the common law.
Most of these initial statutes dealt severely with abortion after quickening but
were lenient with it before quickening. Most punished attempts equally with
completed abortions. While many statutes included the exception for an
abortion thought by one or more physicians to be necessary to save the mother's
life, that provision soon disappeared and the typical law required that the
procedure actually be necessary for that purpose.
46

Gradually, in the middle and late 19th century the quickening distinction
disappeared from the statutory law of most States and the degree of the offense
and the penalties were increased. By the end of the 1950's a large majority of
the jurisdictions banned abortion, however and whenever performed, unless
done to save or preserve the life of the mother.34 The exceptions, Alabama and
the District of Columbia, permitted abortion to preserve the mother's health.35
Three States permitted abortions that were not 'unlawfully' performed or that
were not 'without lawful justification,' leaving interpretation of those standards
to the courts.36 In the past several years, however, a trend toward liberalization
of abortion statutes has resulted in adoption, by about one-third of the States, of
less stringent laws, most of them patterned after the ALI Model Penal Code,
230.3,37 set forth as Appendix B to the opinion in Doe v. Bolton, 410 U.S. 205,
93 S.Ct. 754.

47

It is thus apparent that at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion
was viewed with less disfavor than under most American statutes currently in
effect. Phrasing it another way, a woman enjoyed a substantially broader right
to terminate a pregnancy than she does in most States today. At least with
respect to the early stage of pregnancy, and very possibly without such a
limitation, the opportunity to make this choice was present in this country well
into the 19th century. Even later, the law continued for some time to treat less

punitively an abortion procured in early pregnancy.

48

6. The position of the American Medical Association. The anti-abortion mood

prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a significant
role in the enactment of stringent criminal abortion legislation during that
period.

49

An AMA Committee on Criminal Abortion was appointed in May 1857. It

presented its report, 12 Trans. of the Am.Med.Assn. 73-78 (1859), to the
Twelfth Annual Meeting. That report observed that the Committee had been
appointed to investigate criminal abortion 'with a view to its general
suppression.' It deplored abortion and its frequency and it listed three causes of
'this general demoralization':

50

'The first of these causes is a wide-spread popular ignorance of the true

character of the crime-a belief, even among mothers themselves, that the foetus
is not alive till after the period of quickening.

51

'The second of the agents alluded to is the fact that the profession themselves
are frequently supposed careless of foetal life. . . .

52

'The third reason of the frightful extent of this crime is found in the grave
defects of our laws, both common and statute, as regards the independent and
actual existence of the child before birth, as a living being. These errors, which
are sufficient in most instances to prevent conviction, are based, and only
based, upon mistaken and exploded medical dogmas. With strange
inconsistency, the law fully acknowledges the foetus in utero and its inherent
rights, for civil purposes; while personally and as criminally affected, it fails to
recognize it, and to its life as yet denies all protection.' Id., at 75-76.

53

The Committee then offered, and the Association adopted, resolutions

protesting 'against such unwarrantable destruction of human life,' calling upon
state legislatures to revise their abortion laws, and requesting the cooperation of
state medical societies 'in pressing the subject.' Id., at 28, 78.

54

In 1871 a long and vivid report was submitted by the Committee on Criminal
Abortion. It ended with the observation, 'We had to deal with human life. In a
matter of less importance we could entertain no compromise. An honest judge
on the bench would call things by their proper names. We could do no less.' 22
Trans. of the Am.Med.Assn. 258 (1871). It proffered resolutions, adopted by

the Association, id., at 38-39, recommending, among other things, that it 'be
unlawful and unprofessional for any physician to induce abortion or premature
labor, without the concurrent opinion of at least one respectable consulting
physician, and then always with a view to the safety of the child-if that be
possible,' and calling 'the attention of the clergy of all denominations to the
perverted views of morality entertained by a large class of females-aye, and
men also, on this important question.'
55

Except for periodic condemnation of the criminal abortionist, no further formal

AMA action took place until 1967. In that year, the Committee on Human
Reproduction urged the adoption of a stated policy of opposition to induced
abortion, except when there is 'documented medical evidence' of a threat to the
health or life of the mother, or that the child 'may be born with incapacitating
physical deformity or mental deficiency,' or that a pregnancy 'resulting from
legally established statutory or forcible rape or incest may constitute a threat to
the mental or physical health of the patient,' two other physicians 'chosen
because of their recognized professional competency have examined the patient
and have concurred in writing,' and the procedure 'is performed in a hospital
accredited by the Joint Commission on Accreditation of Hospitals.' The
providing of medical information by physicians to state legislatures in their
consideration of legislation regarding therapeutic abortion was 'to be considered
consistent with the principles of ethics of the American Medical Association.'
This recommendation was adopted by the House of Delegates. Proceedings of
the AMA House of Delegates 40-51 (June 1967).

56

In 1970, after the introduction of a variety of proposed resolutions, and of a

report from its Board of Trustees, a reference committee noted 'polarization of
the medical profession on this controversial issue'; division among those who
had testified; a difference of opinion among AMA councils and committees;
'the remarkable shift in testimony' in six months, felt to be influenced 'by the
rapid changes in state laws and by the judicial decisions which tend to make
abortion more freely available;' and a feeling 'that this trend will continue.' On
June 25, 1970, the House of Delegates adopted preambles and most of the
resolutions proposed by the reference committee. The preambles emphasized
'the best interests of the patient,' 'sound clinical judgment,' and 'informed patient
consent,' in contrast to 'mere acquiescence to the patient's demand.' The
resolutions asserted that abortion is a medical procedure that should be
performed by a licensed physician in an accredited hospital only after
consultation with two other physicians and in conformity with state law, and
that no party to the procedure should be required to violate personally held
moral principles.38 Proceedings of the AMA House of Delegates 220 (June
1970). The AMA Judicial Council rendered a complementary opinion.39

57

7. The position of the American Public Health Association. In October 1970,

the Executive Board of the APHA adopted Standards for Abortion Services.
These were five in number:

58

'a. Rapid and simple abortion referral must be readily available through state
and local public health departments, medical societies, or other non-profit
organizations.

59

'b. An important function of counseling should be to simplify and expedite the

provision of abortion services; if should not delay the obtaining of these
services.

60

'c. Psychiatric consultation should not be mandatory. As in the case of other

specialized medical services, psychiatric consultation should be sought for
definite indications and not on a routine basis.

61

'd. A wide range of individuals from appropriately trained, sympathetic

volunteers to highly skilled physicians may qualify as abortion counselors.

62

'e. Contraception and/or sterilization should be discussed with each abortion

patient.' Recommended Standards for Abortion Services, 61 Am.J.Pub.Health
396 (1971).

63

Among factors pertinent to life and health risks associated with abortion were
three that 'are recognized as important':

64

'a. the skill of the physician,

65

'b. the environment in which the abortion is performed, and above all

66

'c. The duration of pregnancy, as determined by uterine size and confirmed by

menstrual history.' Id., at 397.

67

It was said that 'a well-equipped hospital' offers more protection 'to cope with
unforeseen difficulties than an office or clinic without such resources. . . . The
factor of gestational age is of overriding importance.' Thus, it was
recommended that abortions in the second trimester and early abortions in the
presence of existing medical complications be performed in hospitals as
inpatient procedures. For pregnancies in the first trimester, abortion in the
hospital with or without overnight stay 'is probably the safest practice.' An

abortion in an extramural facility, however, is an acceptable alternative

'provided arrangements exist in advance to admit patients promptly if
unforeseen complications develop.' Standards for an abortion facility were
listed. It was said that at present abortions should be performed by physicians
or osteopaths who are licensed to practice and who have 'adequate training.' Id.,
at 398.
68

8. The position of the American Bar Association. At its meeting in February

1972 the ABA House of Delegates approved, with 17 opposing votes, the
Uniform Abortion Act that had been drafted and approved the preceding
August by the Conference of Commissioners on Uniform State Laws. 58
A.B.A.J. 380 (1972). We set forth the Act in full in the margin.40 The
Conference has appended an enlightening Prefatory Note.41

VII
69

Three reasons have been advanced to explain historically the enactment of

criminal abortion laws in the 19th century and to justify their continued
existence.

70

It has been argued occasionally that these laws were the product of a Victorian
social concern to discourage illicit sexual conduct. Texas, however, does not
advance this justification in the present case, and it appears that no court or
commentator has taken the argument seriously.42 The appellants and amici
contend, moreover, that this is not a proper state purpose at all and suggest that,
if it were, the Texas statutes are overbroad in protecting it since the law fails to
distinguish between married and unwed mothers.

71

A second reason is concerned with abortion as a medical procedure. When most

criminal abortion laws were first enacted, the procedure was a hazardous one
for the woman.43 This was particularly true prior to the development of
antisepsis. Antiseptic techniques, of course, were based on discoveries by
Lister, Pasteur, and others first announced in 1867, but were not generally
accepted and employed until about the turn of the century. Abortion mortality
was high. Even after 1900, and perhaps until as late as the development of
antibiotics in the 1940's, standard modern techniques such as dilation and
curettage were not nearly so safe as they are today. Thus, it has been argued
that a State's real concern in enacting a criminal abortion law was to protect the
pregnant woman, that is, to restrain her from submitting to a procedure that
placed her life in serious jeopardy.

72

Modern medical techniques have altered this situation. Appellants and various

72

Modern medical techniques have altered this situation. Appellants and various
amici refer to medical data indicating that abortion in early pregnancy, that is,
prior to the end of the first trimester, although not without its risk, is now
relatively safe. Mortality rates for women undergoing early abortions, where
the procedure is legal, appear to be as low as or lower than the rates for normal
childbirth.44 Consequently, any interest of the State in protecting the woman
from an inherently hazardous procedure, except when it would be equally
dangerous for her to forgo it, has largely disappeared. Of course, important state
interests in the areas of health and medical standards do remain. The State has a
legitimate interest in seeing to it that abortion, like any other medical
procedure, is performed under circumstances that insure maximum safety for
the patient. This interest obviously extends at least to the performing physician
and his staff, to the facilities involved, to the availability of after-care, and to
adequate provision for any complication or emergency that might arise. The
prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather
than weakens, the State's interest in regulating the conditions under which
abortions are performed. Moreover, the risk to the woman increases as her
pregnancy continues. Thus, the State retains a definite interest in protecting the
woman's own health and safety when an abortion is proposed at a late stage of
pregnancy,

73

The third reason is the State's interest-some phrase it in terms of duty-in

protecting prenatal life. Some of the argument for this justification rests on the
theory that a new human life is present from the moment of conception.45 The
State's interest and general obligation to protect life then extends, it is argued,
to prenatal life. Only when the life of the pregnant mother herself is at stake,
balanced against the life she carries within her, should the interest of the
embryo or fetus not prevail. Logically, of course, a legitimate state interest in
this area need not stand or fall on acceptance of the belief that life begins at
conception or at some other point prior to life birth. In assessing the State's
interest, recognition may be given to the less rigid claim that as long as at least
potential life is involved, the State may assert interests beyond the protection of
the pregnant woman alone.

74

Parties challenging state abortion laws have sharply disputed in some courts the
contention that a purpose of these laws, when enacted, was to protect prenatal
life.46 Pointing to the absence of legislative history to support the contention,
they claim that most state laws were designed solely to protect the woman.
Because medical advances have lessened this concern, at least with respect to
abortion in early pregnancy, they argue that with respect to such abortions the
laws can no longer be justified by any state interest. There is some scholarly
support for this view of original purpose. 47 The few state courts called upon to
interpret their laws in the late 19th and early 20th centuries did focus on the

State's interest in protecting the woman's health rather than in preserving the
embryo and fetus.48 Proponents of this view point out that in many States,
including Texas,49 by statute or judicial interpretation, the pregnant woman
herself could not be prosecuted for self-abortion or for cooperating in an
abortion performed upon her by another.50 They claim that adoption of the
'quickening' distinction through received common law and state statutes tacitly
recognizes the greater health hazards inherent in late abortion and impliedly
repudiates the theory that life begins at conception.
75

It is with these interests, and the weight to be attached to them, that this case is
concerned.

VIII
76

The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, going back perhaps as far as Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the
Court has recognized that a right of personal privacy, or a guarantee of certain
areas or zones of privacy, does exist under the Constitution. In varying contexts,
the Court or individual Justices have, indeed, found at least the roots of that
right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct.
1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments,
Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889
(1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d
576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746
(1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72
L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of
Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682;
in the Ninth Amendment, id., at 486, 85 S.Ct. at 1682 (Goldberg, J.,
concurring); or in the concept of liberty guaranteed by the first section of the
Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct.
625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only
personal rights that can be deemed 'fundamental' or 'implicit in the concept of
ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82
L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also
make it clear that the right has some extension to activities relating to marriage,
Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010
(1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct.
1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird,
405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at
1042, 1043-1044 (White, J., concurring in result); family relationships, Prince
v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944);

and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535,
45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.

77

This right of privacy, whether it be founded in the Fourteenth Amendment's

concept of personal liberty and restrictions upon state action, as we feel it is, or,
as the District Court determined, in the Ninth Amendment's reservation of
rights to the people, is broad enough to encompass a woman's decision whether
or not to terminate her pregnancy. The detriment that the State would impose
upon the pregnant woman by denying this choice altogether is apparent.
Specific and direct harm medically diagnosable even in early pregnancy may be
involved. Maternity, or additional offspring, may force upon the woman a
distressful life and future. Psychological harm may be imminent. Mental and
physical health may be taxed by child care. There is also the distress, for all
concerned, associated with the unwanted child, and there is the problem of
bringing a child into a family already unable, psychologically and otherwise, to
care for it. In other cases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be involved. All these are factors
the woman and her responsible physician necessarily will consider in
consultation.

78

On the basis of elements such as these, appellant and some amici argue that the
woman's right is absolute and that she is entitled to terminate her pregnancy at
whatever time, in whatever way, and for whatever reason she alone chooses.
With this we do not agree. Appellant's arguments that Texas either has no valid
interest at all in regulating the abortion decision, or no interest strong enough to
support any limitation upon the woman's sole determination, are unpersuasive.
The Court's decisions recognizing a right of privacy also acknowledge that
some state regulation in areas protected by that right is appropriate. As noted
above, a State may properly assert important interests in safeguarding health, in
maintaining medical standards, and in protecting potential life. At some point in
pregnancy, these respective interests become sufficiently compelling to sustain
regulation of the factors that govern the abortion decision. The privacy right
involved, therefore, cannot be said to be absolute. In fact, it is not clear to us
that the claim asserted by some amici that one has an unlimited right to do with
one's body as one pleases bears a close relationship to the right of privacy
previously articulated in the Court's decisions. The Court has refused to
recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts,
197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell,
274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).

79

We, therefore, conclude that the right of personal privacy includes the abortion
decision, but that this right is not unqualified and must be considered against

important state interests in regulation.

80

We note that those federal and state courts that have recently considered
abortion law challenges have reached the same conclusion. A majority, in
addition to the District Court in the present case, have held state laws
unconstitutional, at least in part, because of vagueness or because of
overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800
(D.C.Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp.
224 (D.C.Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319
F.Supp. 1048 (N.D.Ga.1970), appeal decided today, 410 U.S. 179, 93 S.Ct.
739, 35 L.Ed.2d 201; Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill.1971), appeal
docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (D.C.Kan.1972);
YWCA v. Kugler, 342 F.Supp. 1048 (D.C.N.J.1972); Babbitz v. McCann, 310
F.Supp. 293 (E.D.Wis.1970), appeal dismissed, 400 U.S. 1, 91 S.Ct. 12, 27
L.Ed.2d 1 (1970); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d
194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970);
State v. Barquet, 262 So.2d 431 (Fla.1972).

81

Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp.
587 (E.D.Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State
Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970), appeal
docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (W.D.N.C.1971),
appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio
1970); Doe v. Rampton, 366 F.Supp. 189 (Utah 1971), appeal docketed, No.
71-5666; Cheaney v. State, Ind., 285 N.E.2d 265 (1972); Spears v. State, 257
So.2d 876 (Miss.1972); State v. Munson, S.D., 201 N.W.2d 123 (1972), appeal
docketed, No. 72-631.

82

Although the results are divided, most of these courts have agreed that the right
of privacy, however based, is broad enough to cover the abortion decision; that
the right, nonetheless, is not absolute and is subject to some limitations; and
that at some point the state interests as to protection of health, medical
standards, and prenatal life, become dominant. We agree with this approach.

83

Where certain 'fundamental rights' are involved, the Court has held that
regulation limiting these rights may be justified only by a 'compelling state
interest,' Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct.
1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634,
89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398,
406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), and that legislative
enactments must be narrowly drawn to express only the legitimate state
interests at stake. Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682;

Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12
L.Ed.2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S.Ct.
900, 904-905, 84 L.Ed. 1213 (1940); see Eisenstadt v. Baird, 405 U.S., at 460,
463-464, 92 S.Ct., at 1042, 1043-1044 (White, J., concurring in result).
84

In the recent abortion cases, cited above, courts have recognized these
principles. Those striking down state laws have generally scrutinized the State's
interests in protecting health and potential life, and have concluded that neither
interest justified broad limitations on the reasons for which a physician and his
pregnant patient might decide that she should have an abortion in the early
stages of pregnancy. Courts sustaining state laws have held that the State's
determinations to protect health or prenatal life are dominant and
constitutionally justifiable.

IX
85

The District Court held that the appellee failed to meet his burden of
demonstrating that the Texas statute's infringement upon Roe's rights was
necessary to support a compelling state interest, and that, although the appellee
presented 'several compelling justifications for state presence in the area of
abortions,' the statutes outstripped these justifications and swept 'far beyond
any areas of compelling state interest.' 314 F.Supp., at 1222-1223. Appellant
and appellee both contest that holding. Appellant, as has been indicated, claims
an absolute right that bars any state imposition of criminal penalties in the area.
Appellee argues that the State's determination to recognize and protect prenatal
life from and after conception constitutes a compelling state interest. As noted
above, we do not agree fully with either formulation.

86

A. The appellee and certain amici argue that the fetus is a 'person' within the
language and meaning of the Fourteenth Amendment. In support of this, they
outline at length and in detail the well-known facts of fetal development. If this
suggestion of personhood is established, the appellant's case, of course,
collapses, for the fetus' right to life would then be guaranteed specifically by
the Amendment. The appellant conceded as much on reargument.51 On the
other hand, the appellee conceded on reargument52 that no case could be cited
that holds that a fetus is a person within the meaning of the Fourteenth
Amendment.

87

The Constitution does not define 'person' in so many words. Section 1 of the
Fourteenth Amendment contains three references to 'person.' The first, in
defining 'citizens,' speaks of 'persons born or naturalized in the United States.'
The word also appears both in the Due Process Clause and in the Equal

Protection Clause. 'Person' is used in other places in the Constitution: in the

listing of qualifications for Representatives and Senators, Art, I, 2, cl. 2, and
3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3;53 in the Migration and
Importation provision, Art. I, 9, cl. 1; in the Emoulument Clause, Art, I, 9,
cl. 8; in the Electros provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in
the provision outlining qualifications for the office of President, Art. II, 1, cl.
5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive
Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as
well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these
instances, the use of the word is such that it has application only postnatally.
None indicates, with any assurance, that it has any possible prenatal
application.54
88

All this, together with our observation, supra, that throughout the major portion
of the 19th century prevailing legal abortion practices were far freer than they
are today, persuades us that the word 'person,' as used in the Fourteenth
Amendment, does not include the unborn.55 This is in accord with the results
reached in those few cases where the issue has been squarely presented.
McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (W.D.Pa.1972); Byrn
v. New York City Health & Hospitals Corp., 31 N.Y.2d 194, 335 N.Y.S.2d
390, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle,
351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72-730. Cf. Cheaney
v. State, Ind., 285 N.E.2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7
1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308, 81 S.Ct. 1336, 6
L.Ed.2d 313 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481,
470 P.2d 617 (1970); State v. Dickinson, 28 Ohio St.2d 65, 275 N.E.2d 599
(1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62, 91 S.Ct.
1294, 28 L.Ed.2d 601 (1971), inferentially is to the same effect, for we there
would not have indulged in statutory interpretation favorable to abortion in
specified circumstances if the necessary consequence was the termination of
life entitled to Fourteenth Amendment protection.

89

This conclusion, however, does not of itself fully answer the contentions raised
by Texas, and we pass on to other considerations.

90

B. The pregnant woman cannot be isolated in her privacy. She carries an

embryo and, later, a fetus, if one accepts the medical definitions of the
developing young in the human uterus. See Dorland's Illustrated Medical
Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently
different from marital intimacy, or bedroom possession of obscene material, or
marriage, or procreation, or education, with which Eisenstadt and Griswold,
Stanley, Loving, Skinner and Pierce and Meyer were respectively concerned.

As we have intimated above, it is reasonable and appropriate for a State to

decide that at some point in time another interest, that of health of the mother or
that of potential human life, becomes significantly involved. The woman's
privacy is no longer sole and any right of privacy she possesses must be
measured accordingly.
91

Texas urges that, apart from the Fourteenth Amendment, life begins at
conception and is present throughout pregnancy, and that, therefore, the State
has a compelling interest in protecting that life from and after conception. We
need not resolve the difficult question of when life begins. When those trained
in the respective disciplines of medicine, philosophy, and theology are unable
to arrive at any consensus, the judiciary, at this point in the development of
man's knowledge, is not in a position to speculate as to the answer.

92

It should be sufficient to note briefly the wide divergence of thinking on this

most sensitive and difficult question. There has always been strong support for
the view that life does not begin until live birth. This was the belief of the
Stoics.56 It appears to be the predominant, though not the unanimous, attitude of
the Jewish faith.57 It may be taken to represent also the position of a large
segment of the Protestant community, insofar as that can be ascertained;
organized groups that have taken a formal position on the abortion issue have
generally regarded abortion as a matter for the conscience of the individual and
her family.58 As we have noted, the common law found greater significance in
quickening. Physicians and their scientific colleagues have regarded that event
with less interest and have tended to focus either upon conception, upon live
birth, or upon the interim point at which the fetus becomes 'viable,' that is,
potentially able to live outside the mother's womb, albeit with artificial aid.59
Viability is usually placed at about seven months (28 weeks) but may occur
earlier, even at 24 weeks.60 The Aristotelian theory of 'mediate animation,' that
held sway throughout the Middle Ages and the Renaissance in Europe,
continued to be official Roman Catholic dogma until the 19th century, despite
opposition to this 'ensoulment' theory from those in the Church who would
recognize the existence of life from the moment of conception.61 The latter is
now, of course, the official belief of the Catholic Church. As one brief amicus
discloses, this is a view strongly held by many non-Catholics as well, and by
many physicians. Substantial problems for precise definition of this view are
posed, however, by new embryological data that purport to indicate that
conception is a 'process' over time, rather than an event, and by new medical
techniques such as menstrual extraction, the 'morning-after' pill, implantation of
embryos, artificial insemination, and even artificial wombs.62

93

In areas other than criminal abortion, the law has been reluctant to endorse any

theory that life, as we recognize it, begins before life birth or to accord legal
rights to the unborn except in narrowly defined situations and except when the
rights are contingent upon life birth. For example, the traditional rule of tort law
denied recovery for prenatal injuries even though the child was born alive.63
That rule has been changed in almost every jurisdiction. In most States,
recovery is said to be permitted only if the fetus was viable, or at least quick,
when the injuries were sustained, though few courts have squarely so held.64 In
a recent development, generally opposed by the commentators, some States
permit the parents of a stillborn child to maintain an action for wrongful death
because of prenatal injuries.65 Such an action, however, would appear to be one
to vindicate the parents' interest and is thus consistent with the view that the
fetus, at most, represents only the potentiality of life. Similarly, unborn children
have been recognized as acquiring rights or interests by way of inheritance or
other devolution of property, and have been represented by guardians ad
litem.66 Perfection of the interests involved, again, has generally been
contingent upon live birth. In short, the unborn have never been recognized in
the law as persons in the whole sense.
X
94

In view of all this, we do not agree that, by adopting one theory of life, Texas
may override the rights of the pregnant woman that are at stake. We repeat,
however, that the State does have an important and legitimate interest in
preserving and protecting the health of the pregnant woman, whether she be a
resident of the State or a non-resident who seeks medical consultation and
treatment there, and that it has still another important and legitimate interest in
protecting the potentiality of human life. These interests are separate and
distinct. Each grows in substantiality as the woman approaches term and, at a
point during pregnancy, each becomes 'compelling.'

95

With respect to the State's important and legitimate interest in the health of the
mother, the 'compelling' point, in the light of present medical knowledge, is at
approximately the end of the first trimester. This is so because of the nowestablished medical fact, referred to above at 149, that until the end of the first
trimester mortality in abortion may be less than mortality in normal childbirth.
It follows that, from and after this point, a State may regulate the abortion
procedure to the extent that the regulation reasonably relates to the preservation
and protection of maternal health. Examples of permissible state regulation in
this area are requirements as to the qualifications of the person who is to
perform the abortion; as to the licensure of that person; as to the facility in
which the procedure is to be performed, that is, whether it must be a hospital or
may be a clinic or some other place of less-than-hospital status; as to the

licensing of the facility; and the like.

96

This means, on the other hand, that, for the period of pregnancy prior to this
'compelling' point, the attending physician, in consultation with his patient, is
free to determine, without regulation by the State, that, in his medical
judgment, the patient's pregnancy should be terminated. If that decision is
reached, the judgment may be effectuated by an abortion free of interference by
the State.

97

With respect to the State's important and legitimate interest in potential life, the
'compelling' point is at viability. This is so because the fetus then presumably
has the capability of meaningful life outside the mother's womb. State
regulation protective of fetal life after viability thus has both logical and
biological justifications. If the State is interested in protecting fetal life after
viability, it may go so far as to proscribe abortion during that period, except
when it is necessary to preserve the life or health of the mother.

98

Measured against these standards, Art. 1196 of the Texas Penal Code, in
restricting legal abortions to those 'procured or attempted by medical advice for
the purpose of saving the life of the mother,' sweeps too broadly. The statute
makes no distinction between abortions performed early in pregnancy and
those performed later, and it limits to a single reason, 'saving' the mother's life,
the legal justification for the procedure. The statute, therefore, cannot survive
the constitutional attack made upon it here.

99

This conclusion makes it unnecessary for us to consider the additional

challenge to the Texas statute asserted on grounds of vagueness. See United
States v. Vuitch, 402 U.S., at 67-72, 91 S.Ct., at 1296-1299.

XI
To summarize and to repeat:
100 1. A state criminal abortion statute of the current Texas type, that excepts from
criminality only a life-saving procedure on behalf of the mother, without regard
to pregnancy stage and without recognition of the other interests involved, is
violative of the Due Process Clause of the Fourteenth Amendment.
101 (a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
the pregnant woman's attending physician.

102 (b) For the stage subsequent to approximately the end of the first trimester, the
State, in promoting its interest in the health of the mother, may, if it chooses,
regulate the abortion procedure in ways that are reasonably related to maternal
health.
103 (c) For the stage subsequent to viability, the State in promoting its interest in
the potentiality of human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother.
104 2. The State may define the term 'physician,' as it has been employed in the
preceding paragraphs of this Part XI of this opinion, to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person
who is not a physician as so defined.
105 In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, procedural
requirements contained in one of the modern abortion statutes are considered.
That opinion and this one, of course, are to be read together.67
106 This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal history,
with the lenity of the common law, and with the demands of the profound
problems of the present day. The decision leaves the State free to place
increasing restrictions on abortion as the period of pregnancy lengthens, so long
as those restrictions are tailored to the recognized state interests. The decision
vindicates the right of the physician to administer medical treatment according
to his professional judgment up to the points where important state interests
provide compelling justifications for intervention. Up to those points, the
abortion decision in all its aspects is inherently, and primarily, a medical
decision, and basic responsibility for it must rest with the physician. If an
individual practitioner abuses the privilege of exercising proper medical
judgment, the usual remedies, judicial and intra-professional, are available.
XII
107 Our conclusion that Art. 1196 is unconstitutional means, of course, that the
Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot
be struck down separately, for then the State would be left with a statute
proscribing all abortion procedures no matter how medically urgent the case.
108 Although the District Court granted appellant Roe declaratory relief, it stopped

short of issuing an injunction against enforcement of the Texas statutes. The

Court has recognized that different considerations enter into a federal court's
decision as to declaratory relief, on the one hand, and injunctive relief, on the
other. Zwickler v. Koota, 389 U.S 241, 252-255, 88 S.Ct. 391, 397-399, 19
L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14
L.Ed.2d 22 (1965). We are not dealing with a statute that, on its face, appears to
abridge free expression, an area of particular concern under Dombrowski and
refined in Younger v. Harris, 401 U.S., at 50, 91 S.Ct., at 753.
109 We find it unnecessary to decide whether the District Court erred in
withholding injunctive relief, for we assume the Texas prosecutorial authorities
will give full credence to this decision that the present criminal abortion statutes
of that State are unconstitutional.
110 The judgment of the District Court as to intervenor Hallford is reversed, and Dr.
Hallford's complaint in intervention is dismissed. In all other respects, the
judgment of the District Court is affirmed. Costs are allowed to the appellee.
111 It is so ordered.
112 Affirmed in part and reversed in part.
113 Mr. Justice STEWART, concurring.
114 In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10
L.Ed.2d 93, purported to sound the death knell for the doctrine of substantive
due process, a doctrine under which many state laws had in the past been held
to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the
Court in Skrupa put it: 'We have returned to the original constitutional
proposition that courts do not substitute their social and economic beliefs for
the judgment of legislative bodies, who are elected to pass laws.' Id., at 730, 83
S.Ct., at 1031. 1
115 Barely who years later, in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct.
1678, 14 L.Ed.2d 510, the Court held a Connecticut birth control law
unconstitutional. In view of what had been so recently said in Skrupa, the
Court's opinion in Griswold understandably did its best to avoid reliance on the
Due Process Clause of the Fourteenth Amendment as the ground for decision.
Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor
any other specific provision of the Constitution.2 So it was clear to me then,
and it is equally clear to me now, that the Griswold decision can be rationally

understood only as a holding that the Connecticut statute substantively invaded

the 'liberty' that is protected by the Due Process Clause of the Fourteenth
Amendment.3 As so understood, Griswold stands as one in a long line of preSkrupa cases decided under the doctrine of substantive due process, and I now
accept it as such.
116 'In a Constitution for a free people, there can be no doubt that the meaning of
'liberty' must be broad indeed.' Board of Regents v. Roth, 408 U.S. 564, 572, 92
S.Ct. 2701, 2707, 33 L.Ed.2d 548. The Constitution nowhere mentions a
specific right of personal choice in matters of marriage and family life, but the
'liberty' protected by the Due Process Clause of the Fourteenth Amendment
covers more than those freedoms explicitly named in the Bill of Rights. See
Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S.Ct. 752, 755756, 1 L.Ed.2d 796; Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45
S.Ct. 571, 573-574, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 399-400,
43 S.Ct. 625, 626-627, 67 L.Ed. 1042. Cf. Shapiro v. Thompson, 394 U.S. 618,
629-630, 89 S.Ct. 1322, 1328-1329, 22 L.Ed.2d 600; United States v. Guest,
383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239; Carrington
v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675; Aptheker v.
Secretary of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992;
Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204;
Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694-695, 98 L.Ed. 884;
Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131.
117 As Mr. Justice Harlan once wrote: '(T)he full scope of the liberty guaranteed by
the Due Process Clause cannot be found in or limited by the precise terms of
the specific guarantees elsewhere provided in the Constitution. This 'liberty' is
not a series of isolated points priced out in terms of the taking of property; the
freedom of speech, press, and religion; the right to keep and bear arms; the
freedom from unreasonable searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints . . . and which also recognizes,
what a reasonable and sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to justify their
abridgment.' Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776, 6 L.Ed.2d
989 (opinion dissenting from dismissal of appeal) (citations omitted). In the
words of Mr. Justice Frankfurter, 'Great concepts like . . . 'liberty' . . . were
purposely left to gather meaning from experience. For they relate to the whole
domain of social and economic fact, and the statesmen who founded this Nation
knew too well that only a stagnant society remains unchanged.' National Mutual
Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1195, 93
L.Ed. 1556 (dissenting opinion).

118 Several decisions of this Court make clear that freedom of personal choice in
matters of marriage and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1,
12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Griswold v. Connecticut, supra;
Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645; Skinner v.
Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. As recently
as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31
L.Ed.2d 349, we recognized 'the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.' That right
necessarily includes the right of a woman to decide whether or not to terminate
her pregnancy. 'Certainly the interests of a woman in giving of her physical and
emotional self during pregnancy and the interests that will be affected
throughout her life by the birth and raising of a child are of a far greater degree
of significance and personal intimacy than the right to send a child to private
school protected in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69
L.Ed. 1070 (1925), or the right to teach a foreign language protected in Meyer
v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).' Abele v.
Markle, 351 F.Supp. 224, 227 (D.C.Conn.1972).
119 Clearly, therefore, the Court today is correct in holding that the right asserted
by Jane Roe is embraced within the personal liberty protected by the Due
Process Clause of the Fourteenth Amendment.
120 It is evident that the Texas abortion statute infringes that right directly. Indeed,
it is difficult to imagine a more complete abridgment of a constitutional
freedom than that worked by the inflexible criminal statute now in force in
Texas. The question then becomes whether the state interests advanced to
justify this abridgment can survive the 'particularly careful scrutiny' that the
Fourteenth Amendment here requires.
121 The asserted state interests are protection of the health and safety of the
pregnant woman, and protection of the potential future human life within her.
These are legitimate objectives, amply sufficient to permit a State to regulate
abortions as it does other surgical procedures, and perhaps sufficient to permit a
State to regulate abortions more stringently or even to prohibit them in the late
stages of pregnancy. But such legislation is not before us, and I think the Court
today has thoroughly demonstrated that these state interests cannot
constitutionally support the broad abridgment of personal liberty worked by the
existing Texas law. Accordingly, I join the Court's opinion holding that that
law is invalid under the Due Process Clause of the Fourteenth Amendment.

122 Mr. Justice REHNQUIST, dissenting.

123 The Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the opinion
thus commands my respect, I find myself nonetheless in fundamental
disagreement with those parts of it that invalidate the Texas statute in question,
and therefore dissent.
124 * The Court's opinion decides that a State may impose virtually no restriction
on the performance of abortions during the first trimester of pregnancy. Our
previous decisions indicate that a necessary predicate for such an opinion is a
plaintiff who was in her first trimester of pregnancy at some time during the
pendency of her lawsuit. While a party may vindicate his own constitutional
rights, he may not seek vindication for the rights of others. Moose Lodge No.
107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Sierra Club
v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The Court's
statement of facts in this case makes clear, however, that the record in no way
indicates the presence of such a plaintiff. We know only that plaintiff Roe at
the time of filing her complaint was a pregnant woman; for aught that appears
in this record, she may have been in her last trimester of pregnancy as of the
date the complaint was filed.
125 Nothing in the Court's opinion indicates that Texas might not constitutionally
apply its proscription of abortion as written to a woman in that stage of
pregnancy. Nonetheless, the Court uses her complaint against the Texas statute
as a fulcrum for deciding that States may impose virtually no restrictions on
medical abortions performed during the first trimester of pregnancy. In
deciding such a hypothetical lawsuit, the Court departs from the longstanding
admonition that it should never 'formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.' Liverpool, New
York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33,
39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). See also Ashwander v. TVA, 297
U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J.,
concurring).
II
126 Even if there were a plaintiff in this case capable of litigating the issue which
the Court decides, I would reach a conclusion opposite to that reached by the
Court. I have difficulty in concluding, as the Court does, that the right of
'privacy' is involved in this case. Texas, by the statute here challenged, bars the
performance of a medical abortion by a licensed physician on a plaintiff such as

Roe. A transaction resulting in an operation such as this is not 'private' in the

ordinary usage of that word. Nor is the 'privacy' that the Court finds here even a
distant relative of the freedom from searches and seizures protected by the
Fourth Amendment to the Constitution, which the Court has referred to as
embodying a right to privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967).
127 If the Court means by the term 'privacy' no more than that the claim of a person
to be free from unwanted state regulation of consensual transactions may be a
form of 'liberty' protected by the Fourteenth Amendment, there is no doubt that
similar claims have been upheld in our earlier decisions on the basis of that
liberty. I agree with the statement of Mr. Justice STEWART in his concurring
opinion that the 'liberty,' against deprivation of which without due process the
Fourteenth Amendment protects, embraces more than the rights found in the
Bill of Rights. But that liberty is not guaranteed absolutely against deprivation,
only against deprivation without due process of law. The test traditionally
applied in the area of social and economic legislation is whether or not a law
such as that challenged has a rational relation to a valid state objective.
Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed.
563 (1955). The Due Process Clause of the Fourteenth Amendment
undoubtedly does place a limit, albeit a broad one, on legislative power to enact
laws such as this. If the Texas statute were to prohibit an abortion even where
the mother's life is in jeopardy, I have little doubt that such a statute would lack
a rational relation to a valid state objective under the test stated in Williamson,
supra. But the Court's sweeping invalidation of any restrictions on abortion
during the first trimester is impossible to justify under that standard, and the
conscious weighing of competing factors that the Court's opinion apparently
substitutes for the established test is far more appropriate to a legislative
judgment than to a judicial one.
128 The Court eschews the history of the Fourteenth Amendment in its reliance on
the 'compelling state interest' test. See Weber v. Aetna Casualty & Surety Co.,
406 U.S. 164, 179, 92 S.Ct. 1400, 1408, 31 L.Ed.2d 768 (1972) (dissenting
opinion). But the Court adds a new wrinkle to this test by transposing it from
the legal considerations associated with the Equal Protection Clause of the
Fourteenth Amendment to this case arising under the Due Process Clause of the
Fourteenth Amendment. Unless I misapprehend the consequences of this
transplanting of the 'compelling state interest test,' the Court's opinion will
accomplish the seemingly impossible feat of leaving this area of the law more
confused than it found it.
129 While the Court's opinion quotes from the dissent of Mr. Justice Holmes in

Lochner v. New York, 198 U.S. 45, 74, 25 S.Ct. 539, 551, 49 L.Ed. 937 (1905),
the result it reaches is more closely attuned to the majority opinion of Mr.
Justice Peckham in that case. As in Lochner and similar cases applying
substantive due process standards to economic and social welfare legislation,
the adoption of the compelling state interest standard will inevitably require this
Court to examine the legislative policies and pass on the wisdom of these
policies in the very process of deciding whether a particular state interest put
forward may or may not be 'compelling.' The decision here to break pregnancy
into three distinct terms and to outline the permissible restrictions the State may
impose in each one, for example, partakes more of judicial legislation than it
does of a determination of the intent of the drafters of the Fourteenth
Amendment.
130 The fact that a majority of the States reflecting, after all the majority sentiment
in those States, have had restrictions on abortions for at least a century is a
strong indication, it seems to me, that the asserted right to an abortion is not 'so
rooted in the traditions and conscience of our people as to be ranked as
fundamental,' Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78
L.Ed. 674 (1934). Even today, when society's views on abortion are changing,
the very existence of the debate is evidence that the 'right' to an abortion is not
so universally accepted as the appellant would have us believe.
131 To reach its result, the Court necessarily has had to find within the Scope of the
Fourteenth Amendment a right that was apparently completely unknown to the
drafters of the Amendment. As early as 1821, the first state law dealing directly
with abortion was enacted by the Connecticut Legislature. Conn.Stat., Tit. 22,
14, 16. By the time of the adoption of the Fourteenth Amendment in 1868,
there were at least 36 laws enacted by state or territorial legislatures limiting
abortion.1 While many States have amended or updated their laws, 21 of the
laws on the books in 1868 remain in effect today.2 Indeed, the Texas statute
struck down today was, as the majority notes, first enacted in 1857 and 'has
remained substantially unchanged to the present time.' Ante, at 119.
132 There apparently was no question concerning the validity of this provision or of
any of the other state statutes when the Fourteenth Amendment was adopted.
The only conclusion possible from this history is that the drafters did not intend
to have the Fourteenth Amendment withdraw from the States the power to
legislate with respect to this matter.
III
133 Even if one were to agree that the case that the Court decides were here, and

that the enunciation of the substantive constitutional law in the Court's opinion
were proper, the actual disposition of the case by the Court is still difficult to
justify. The Texas statute is struck down in toto, even though the Court
apparently concedes that at later periods of pregnancy Texas might impose
these selfsame statutory limitations on abortion. My understanding of past
practice is that a statute found to be invalid as applied to a particular plaintiff,
but not unconstitutional as a whole, is not simply 'struck down' but is, instead,
declared unconstitutional as applied to the fact situation before the Court. Yick
Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Street v. New
York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed. 572 (1969).
134 For all of the foregoing reasons, I respectfully dissent.

'Article 1191. Abortion

'If any person shall designedly administer to a pregnant woman or knowingly
procure to be administered with her consent any drug or medicine, or shall use
towards her any violence or means whatever externally or internally applied,
and thereby procure an abortion, he shall be confined in the penitentiary not less
than two nor more than five years; if it be done without her consent, the
punishment shall be doubled. By 'abortion' is meant that the life of the fetus or
embryo shall be destroyed in the woman's womb or that a premature birth
thereof be caused.
'Art. 1192. Furnishing the means
'Whoever furnishes the means for procuring an abortion knowing the purpose
intended is guilty as an accomplice.
'Art. 1193. Attempt at abortion
'If the means used shall fail to produce an abortion, the offender is nevertheless
guilty of an attempt to produce abortion, provided it be shown that such means
were calculated to produce that result, and shall be fined not less than one
hundred nor more than one thousand dollars.
'Art. 1194. Murder in producing abortion
'If the death of the mother is occasioned by an abortion so produced or by an
attempt to effect the same it is murder.'
'Art. 1196. By medical advice

'Nothing in this chapter applies to an abortion procured or attempted by medical

advice for the purpose of saving the life of the mother.'
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15
of the Penal Code. Article 1195, not attacked here, reads:
'Art. 1195. Destroying unborn child
'Whoever shall during parturition of the mother destroy the vitality or life in a
child in a state of being born and before actual birth, which child would
otherwise have been born alive, shall be confined in the penitentiary for life or
for not less than five years.'
2

Ariz.Rev.Stat.Ann. 13-211 (1956); Conn.Pub.Act No. 1 (May 1972 special

session) (in 4 Conn.Leg.Serv. 677 (1972)), and Conn.Gen.Stat.Rev. 53-29,
53-30 (1968) (or unborn child); Idaho Code 18-601 (1948); Ill.Rev.Stat., c.
38, 21-1 (1971); Ind.Code 35-1-58-1 (1971); Iowa Code 701.1 (1971);
Ky.Rev.Stat. 436.020 (1962); LaRev.Stat. 37:1285(6) (1964) (loss of
medical license) (but see 14-87 (Supp.1972) containing no exception for the
life of the mother under the criminal statute); Me.Rev.Stat.Ann., Tit. 17, 51
(1964); Mass.Gen.Laws Ann., c. 272, 19 (1970) (using the term 'unlawfully,'
construed to exclude an abortion to save the mother's life, Kudish v. Bd. of
Registration, 356 Mass. 98, 248 N.E.2d 264 (1969)); Mich.Comp.Laws
750.14 (1948); Minn.Stat. 617.18 (1971); Mo.Rev.Stat. 559.100 (1969);
Mont.Rev.Codes Ann. 94-401 (1969); Neb.Rev.Stat. 28-405 (1964);
Nev.Rev.Stat. 200.220 (1967); N.H.Rev.Stat.Ann. 585:13 (1955);
N.J.Stat.Ann. 2A:87-1 (1969) ('without lawful justification'); N.D.Cent.Code
12-25-01, 12-25-02 (1960); Ohio Rev.Code Ann. 2901.16 (1953);
Okla.Stat.Ann., Tit. 21, 861 (1972-1973 Supp.); Pa.Stat.Ann., Tit. 18,
4718, 4719 (1963) ('unlawful'); R.I.Gen.Laws Ann. 11-3-1 (1969);
S.D.Comp.Laws Ann. 22-17-1 (1967); Tenn.Code Ann. 39-301, 39-302
(1956); Utah Code Ann. 76-2-1, 76-2-2 (1953); Vt.Stat.Ann., Tit. 13, 101
(1958); W.Va.Code Ann. 61-2-8 (1966); Wis.Stat. 940.04 (1969);
Wyo.Stat.Ann. 6-77, 6-78 (1957).

Long ago, a suggestion was made that the Texas statutes were
unconstitutionally vague because of definitional deficiencies. The Texas Court
of Criminal Appeals disposed of that suggestion peremptorily, saying only,
'It is also insisted in the motion in arrest of judgment that the statute is
unconstitutional and void, in that it does not sufficiently define or describe the
offense of abortion. We do not concur with counsel in respect to this question.'
Jackson v. State, 55 Tex.Cr.R. 79, 89, 115 S.W. 262, 268 (1908).

The same court recently has held again that the State's abortion statutes are not
unconstitutionally vague or overbroad. Thompson v. State, 493 S.W.2d 913
(1971), appeal docketed, No. 71-1200. The court held that 'the State of Texas
has a compelling interest to protect fetal life'; that Art. 1191 'is designed to
protect fetal life'; that the Texas homicide statutes, particularly Act. 1205 of the
Penal Code, are intended to protect a person 'in existence by actual birth' and
thereby implicitly recognize other human life that is not 'in existence by actual
birth'; that the definition of human life is for the legislature and not the courts;
that Art. 11196 'is more definite that the District of Columbia statute upheld in
(United States v.) Vuitch' (402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601); and
that the Texas statute 'is not vague and indefinite or overbroad.' A physician's
abortion conviction was affirmed.
In 493 S.W.2d, at 920 n. 2, the court observed that any issue as to the burden of
proof under the exemption of Art. 1196 'is not before us.' But see Veevers v.
State, 172 Tex.Cr.R. 162, 168-169, 354 S.W.2d 161, 166-167 (1962). Cf.
United States v. Vuitch, 402 U.S. 62, 69-71, 91 S.Ct. 1294, 1298-1299, 28
L.Ed.2d 601 (1971).
4

The name is a pseudonym.

These names are pseudonyms.

The appellee twice states in his brief that the hearing before the District Court
was held on July 22, 1970. Brief for Appellee 13. The docket entries, App. 2,
and the transcript, App. 76, reveal this to be an error. The July date appears to
be the time of the reporter's transcription. See App. 77.

We need not consider what different result, if any, would follow if Dr.
Hallford's intervention were on behalf of a class. His complaint in intervention
does not purport to assert a class suit and makes no reference to any class apart
from an allegation that he 'and others similarly situated' must necessarily guess
at the meaning of Art. 1196. His application for leave to intervene goes
somewhat further, for it asserts that plaintiff Roe does not adequately protect
the interest of the doctor 'and the class of people who are physicians . . . (and)
the class of people who are . . . patients . . ..' The leave application, however, is
not the complaint. Despite the District Court's statement to the contrary, 314
F.Supp., at 1225, we fail to perceive the essentials of a class suit in the Hallford
complaint.

A Castiglioni, A. History of Medicine 84 (2d ed. 1947), E. Krumbhaar,

translator and editor (hereinafter Castiglioni).

J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 1950)

(hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader); K.

Niswander, Medical Abortion Practices in the United States, in Abortion and
the Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and
the Criminal Law 148 (1957) (hereinafter Williams); J. Noonan, An Almost
Absolute Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed.
1970) (hereinafter Noonan); Quay, Justifiable Abortion-Medical and Legal
Foundations, (pt. 2), 49 Geo.L.J. 395, 406-422 (1961) (hereinafter Quay).
10

L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see

Castiglioni 227.

11

Edelstein 12; Ricci 113-114, 118-119; Noonan 5.

12

Edelstein 13-14.

13

Castiglioni 148.

14

Id., at 154.

15

Edelstein 3.

16

Id., at 12, 15-18.

17

Id., at 18; Lader 76.

18

Edelstein 63.

19

Id., at 64.

20

Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).

21

E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, 16 (4th
ed. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the
Crown 433 (1st Amer. ed. 1847). For discussions of the role of the quickening
concept in English common law, see Lader 78; Noonan 223-226; Means, The
Law of New York Concerning Abortion and the Status of the Foetus, 16641968: A Case of Cessation of Constitutionality (pt. 1), 14 N.Y.L.F. 411, 418428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59
J.Crim.L.C. & P.S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.

22

Early philosophers believed that the embryo or fetus did not become formed
and begin to live until at least 40 days after conception for a male, and 80 to 90
days for a female. See, for example, Aristotle, Hist.Anim. 7.3.583b; Gen.Anim.
2.3.736, 2.5.741; Hippocrates, Lib. de Nat.Puer., No. 10. Aristotle's thinking
derived from his three-stage theory of life: vegetable, animal, rational. The

vegetable stage was reached at conception, the animal at 'animation,' and the
rational soon after live birth. This theory, together with the 40/80 day view,
came to be accepted by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who
made a distinction between embryo inanimatus, not yet endowed with a soul,
and embryo animatus. He may have drawn upon Exodus 21:22. At one point,
however, he expressed the view that human powers cannot determine the point
during fetal development at which the critical change occurs. See Augustine,
De Origine Animae 4.4 (Pub.Law 44.527). See also W. Reany, The Creation of
the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in
Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162,
Washington, D.C., 1942).
Galen, in three treatises related to embryology, accepted the thinking of
Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was
incorporated by Gratian into the Decretum, published about 1140. Decretum
Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123
(A. Friedberg, 2d ed. 1879). This Decretal and the Decretals that followed were
recognized as the definitive body of canon law until the new Code of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan
20-26; Quay 426-430; see also J. Noonan, Contraception: A History of Its
Treatment by the Catholic Theologians and Canonists 18-29 (1965).
23

Bracton took the position that abortion by blow or poison was homicide 'if the
foetus be already formed and animated, and particularly if it be animated.' 2 H.
Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or,
as a later translation puts it, 'if the foetus is already formed or quickened,
especially if it is quickened,' 2 H. Bracton, On the Laws and Customs of
England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book
1, c. 23) (Selden Society ed. 1955).

24

E. Coke, Institutes III *50.

25

1 W. Blackstone, Commentaries *129-130.

26

Means, The Phoenix of Abortional Freedom: Is a Penumbral or NinthAmendment Right About to Arise from the Nineteenth-Century Legislative
Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335
(1971) (hereinafter Means II). The author examines the two principal
precedents cited marginally by Coke, both contrary to his dictum, and traces the
treatment of these and other cases by earlier commentators. He concludes that
Coke, who himself participated as an advocate in an abortion case in 1601, may

have intentionally misstated the law. The author even suggests a reason: Coke's
strong feelings against abortion, coupled with his determination to assert
common-law (secular) jurisdiction to assess penalties for an offense that
traditionally had been an exclusively ecclesiastical or canon-law crime. See also
Lader 78-79, who notes that some scholars doubt that the common law ever
was applied to abortion; that the English ecclesiastical courts seem to have lost
interest in the problem after 1527; and that the preamble to the English
legislation of 1803, 43 Geo. 3, c. 58, 1, referred to in the text, infra, at 136,
states that 'no adequate means have been hitherto provided for the prevention
and punishment of such offenses.'
27

Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker,

50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N.J.L. 52, 58
(1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31
Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart
v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599,
606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.W.
611, 612 (1907); Gray v. State, 77 Tex.Cr.R. 221, 224, 178 S.W. 337, 338
(1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d 217, 221 (1949).
Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83
N.C. 630, 632 (1880).

28

See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N.Y. 86, 88
(1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).

29

Conn.Stat., Tit. 20, 14 (1821).

30

Conn.Pub.Acts, c. 71, 1 (1860).

31

N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6, 21, p. 694

(1829).

32

Act of Jan. 20, 1840, 1, set forth in 2 H. Gammel, Laws of Texas 177-178
(1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S.W. 1124, 1125 (1913).

33

The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern
85-86; and Means II 375-376.

34

Criminal abortion statutes in effect in the States as of 1961, together with

historical statutory development and important judicial interpretations of the
state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey
of the Present Statutory and Case Law on Abortion: The Contradictions and the
Problems, 1972 U.Ill.L.F. 177, 179, classifying the abortion statutes and listing
25 States as permitting abortion only if necessary to save or preserve the

mother's life.
35

Ala.Code, Tit. 14, 9 (1958); D.C.Code Ann. 22-201 (1967).

36

Mass.Gen.Laws Ann., c. 272, 19 (1970); N.J.Stat.Ann. 2A:87-1 (1969);

Pa.Stat.Ann., Tit. 18, 4718, 4719 (1963).

37

Fourteen States have adopted some form of the ALI statute. See Ark.Stat.Ann.
41-303 to 41-310 (Supp.1971); Calif. Health & Safety Code 2595025955.5 (Supp.1972); Colo.Rev.Stat.Ann. 40-2-50 to 40-2-53
(Cum.Supp.1967); Del.Code Ann., Tit. 24, 1790-1793 (Supp.1972); Florida
Law of Apr. 13, 1972, c. 72-196, 1972 Fla.Sess.Law Serv., pp. 380-382;
Ga.Code 26-1201 to 26-1203 (1972); Kan.Stat.Ann. 21-3407 (Supp.1971);
Md.Ann.Code, Art. 43, 137-139 (1971); Miss.Code Ann. 2223
(Supp.1972); N.M.Stat.Ann. 40A-5-1 to 40A-5-3 (1972); N.C.Gen.Stat.
14-45.1 (Supp.1971); Ore.Rev.Stat. 435.405 to 435.495 (1971); S.C.Code
Ann. 16-82 to 16-89 (1962 and Supp.1971); Va.Code Ann. 18.1-62 to
18.1-62.3 (Supp.1972). Mr. Justice Clark described some of these States as
having 'led the way.' Religion, Morality, and Abortion: A Constitutional
Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for
abortions performed in early pregnancy by a licensed physician, subject to
stated procedural and health requirements. Alaska Stat. 11.15.060 (1970);
Haw.Rev.Stat. 453-16 (Supp.1971); N.Y.Penal Code 125.05, subd. 3
(Supp.1972-1973); Wash.Rev.Code 9.02.060 to 9.02.080 (Supp.1972). The
precise status of criminal abortion laws in some States is made unclear by
recent decisions in state and federal courts striking down existing state laws, in
whole or in part.

38

'Whereas, Abortion, like any other medical procedure, should not be performed
when contrary to the best interests of the patient since good medical practice
requires due consideration for the patient's welfare and not mere acquiescence
to the patient's demand; and
'Whereas, The standards of sound clinical judgment, which, together with
informed patient consent should be determinative according to the merits of
each individual case; therefore be it
'RESOLVED, That abortion is a medical procedure and should be performed
only by a duly licensed physician and surgeon in an accredited hospital acting
only after consultation with two other physicians chosen because of their
professional competency and in conformance with standards of good medical
practice and the Medical Practice Act of his State; and be it further

'RESOLVED, That no physician or other professional personnel shall be

compelled to perform any act which violates his good medical judgment.
Neither physician, hospital, nor hospital personnel shall be required to perform
any act violative of personally-held moral principles. In these circumstances
good medical practice requires only that the physician or other professional
personnel withdraw from the case so long as the withdrawal is consistent with
good medical practice.' Proceedings of the AMA House of Delegates 220 (June
1970).
39

'The Principles of Medical Ethics of the AMA do not prohibit a physician from
performing an abortion that is performed in accordance with good medical
practice and under circumstances that do not violate the laws of the community
in which he practices.
'In the matter of abortions, as of any other medical procedure, the Judicial
Council becomes involved whenever there is alleged violation of the Principles
of Medical Ethics as established by the House of Delegates.'

40

'UNIFORM ABORTION ACT

'Section 1. (Abortion Defined; When Authorized.)
'(a) 'Abortion' means the termination of human pregnancy with an intention
other than to produce a live birth or to remove a dead fetus.
'(b) An abortion may be performed in this state only if it is performed:
'(1) by a physician licensed to practice medicine (or osteopathy) in this state or
by a physician practicing medicine (or osteopathy) in the employ of the
government of the United States or of this state, (and the abortion is performed
(in the physician's office or in a medical clinic, or) in a hospital approved by
the (Department of Health) or operated by the United States, this state, or any
department, agency, or political subdivision of either;) or by a female upon
herself upon the advice of the physician; and
'(2) within (20) weeks after the commencement of the pregnancy (or after (20)
weeks only if the physician has reasonable cause to believe (i) there is a
substantial risk that continuance of the pregnancy would endanger the life of
the mother or would gravely impair the physical or mental health of the mother,
(ii) that the child would be born with grave physical or mental defect, or (iii)
that the pregnancy resulted from rape or incest, or illicit intercourse with a girl
under the age of 16 years).
'Section 2. (Penalty.) Any person who performs or procures an abortion other

than authorized by this Act is guilty of a (felony) and, upon conviction thereof,
may be sentenced to pay a fine not exceeding ($1,000) or to imprisonment (in
the state penitentiary) not exceeding (5 years), or both.
'Section 3. (Uniformity of Interpretation.) This Act shall be construed to
effectuate its general purpose to make uniform the law with respect to the
subject of this Act among those states which enact it.
'Section 4. (Short Title.) This Act may be cited as the Uniform Abortion Act.
'Section 5. (Severability.) If any provision of this Act or the application thereof
to any person or circumstance is held invalid, the invalidity does not affect
other provisions or applications of this Act which can be given effect without
the invalid provision or application, and to this end the provision of this Act are
severable.
'Section 6. (Repeal.) The following acts and parts of acts are repealed:
'(1)
'(2)
'(3)
'Section 7. (Time of Taking Effect.) This Act shall take effect ___.'
41

'This Act is based largely upon the New York abortion act following a review
of the more recent laws on abortion in several states and upon recognition of a
more liberal trend in laws on this subject. Recognition was given also to the
several decisions in state and federal courts which show a further trend toward
liberalization of abortion laws, especially during the first trimester of
pregnancy.
'Recognizing that a number of problems appeared in New York, a shorter time
period for 'unlimited' abortions was advisable. The time period was bracketed
to permit the various states to insert a figure more in keeping with the different
conditions that might exist among the states. Likewise, the language limiting
the place or places in which abortions may be performed was also bracketed to
account for different conditions among the states. In addition, limitations on
abortions after the initial 'unlimited' period were placed in brackets so that
individual states may adopt all or any of these reasons, or place further
restrictions upon abortions after the initial period.
'This Act does not contain any provision relating to medical review committees

or prohibitions against sanctions imposed upon medical personnel refusing to

participate in abortions because of religious or other similar reasons, or the like.
Such provisions, while related, do not directly pertain to when, where, or by
whom abortions may be performed; however, the Act is not drafted to exclude
such a provision by a state wishing to enact the same.'
42

See, for example, YWCA v. Kugler, 342 F.Supp. 1048, 1074 (D.C.N.J.1972);
Abele v. Markle, 342 F.Supp. 800, 805-806 (D.C.Conn.1972) (Newman, J.,
concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250
So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N.J.L.
86, 90 (1881); Means II 381-382.

43

See C. Haagensen & W. Lloyd, A. Hundred Years of Medicine 19 (1943).

44

Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970)

(England and Wales); Abortion Mortality, 20 Morbidity and Mortality 208, 209
(June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York City);
Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family
Planning 5, 7 (1970); Tietze, Mortality with Contraception and Induced
Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia,
Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J.A.M.A.
1149, 1152 (April 1961). Other sources are discussed in Lader 17-23.

45

See Brief of Amicus National Right to Life Committee; R. Drinan, The

Inviolability of the Right to Be Born, in Abortion and the Law 107 (D. Smith
ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due Process of
Law, 16 U.C.L.A.L.Rev. 233 (1969); Noonan 1.

46

See, e.g., Abele v. Markle, 342 F.Supp. 800 (D.C.Conn.1972), appeal docketed,
No. 72-56.

47

See discussions in Means I and Means II.

48

See, e.g., State v. Murphy, 27 N.J.L. 112, 114 (1858).

49

Watson v. State, 9 Tex.App. 237, 244-245 (1880); Moore v. State, 37 Tex.Cr.R.

552, 561, 40 S.W. 287, 290 (1897); Shaw v. State, 73 Tex.Cr.R. 337, 339, 165
S.W. 930, 931 (1914); Fondren v. State, 74 Tex.Cr.R. 552, 557, 169 S.W. 411,
414 (1914); Gray v. State, 77 Tex.Cr.R. 221, 229, 178 S.W. 337, 341 (1915).
There is no immunity in Texas for the father who is not married to the mother.
Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v. State,
Tex.Cr.App., 493 S.W.2d 913 (1971), appeal pending.

50

See Smith v. State, 33 Me., at 55; In re Vince, 2 N.J. 443, 450, 67 A.2d 141,

144 (1949). A short discussion of the modern law on this issue is contained in
the Comment to the ALI's Model Penal Code 207.11, at 158 and nn. 35-37
(Tent.Draft No. 9, 1959).
51
52

Tr. of Oral Rearg. 20-21.

Tr. of Oral Rearg. 24.

53

We are not aware that in the taking of any census under this clause, a fetus has
ever been counted.

54

When Texas urges that a fetus is entitled to Fourteenth Amendment protection

as a person, it faces a dilemma. Neither in Texas nor in any other State are all
abortions prohibited. Despite broad proscription, an exception always exists.
The exception contained in Art. 1196, for an abortion procured or attempted by
medical advice for the purpose of saving the life of the mother, is typical. But
if the fetus is a person who is not to be deprived of life without due process of
law, and if the mother's condition is the sole determinant, does not the Texas
exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the
typical abortion statute. It has already been pointed out, n. 49, supra, that in
Texas the woman is not a principal or an accomplice with respect to an abortion
upon her. If the fetus is a person, why is the woman not a principal or an
accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is
significantly less than the maximum penalty for murder prescribed by Art.
1257 of the Texas Penal Code. If the fetus is a person, may the penalties be
different?

55

Cf. the Wisconsin abortion statute, defining 'unborn child' to mean 'a human
being from the time of conception until it is born alive,' Wis.Stat. 940.04(6)
(1969), and the new Connecticut statute, Pub. Act No. 1 (May 1972 Special
Session), declaring it to be the public policy of the State and the legislative
intent 'to protect and preserve human life from the moment of conception.'

56

Edelstein 16.

57

Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a
stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and the
Law 124 (D. Smith ed. 1967).

58

Amicus Brief for the American Ethical Union et al. For the position of the
National Council of Churches and of other denominations, see Lader 99-101.

59

L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's
Illustrated Medical Dictionary 1689 (24th ed. 1965).

60

Hellman & Pritchard, supra, n. 59, at 493.

61

For discussions of the development of the Roman Catholic position, see D.

Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.

62

See Brodie, The New Biology and the Prenatal Child, 9 J.Family L. 391, 397
(1970); Gorney, The New Biology and the Future of Man, 15 U.C.L.A.L.Rev.
273 (1968); Note, Criminal Law-abortion-The 'Morning-After Pill' and Other
Pre-Implantation Birth-Control Methods and the Law, 46 Ore.L.Rev. 211
(1967); G. Taylor, The Biological Time Bomb 32 (1968); A. Rosenfeld, The
Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial
Insemination and the Law, 67 Mich.L.Rev. 127 (1968); Note, Artificial
Insemination and the Law, 1968 U.Ill.L.F. 203.

63

W. Prosser, The Law of Torts 33k-338 (4th ed. 1971); 2 F. Harper & F. James,
The Law of Torts 1028-1031 (1956) ; Note, 63 Harv.L.Rev. 173 (1949).

64

See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for
Death of Unborn Child, 15 A.L.R.3d 992 (1967).

65

Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: The Legal
and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).

66

Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16
U.C.L.A.L.Rev. 233, 235-238 (1969); Note, 56 Iowa L.Rev. 994, 999-1000
(1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351354 (1971).

67

Neither in this opinion nor in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35
L.Ed.2d 201, do we discuss the father's rights, if any exist in the constitutional
context, in the abortion decision. No paternal right has been asserted in either of
the cases, and the Texas and the Georgia statutes on their face take no
cognizance of the father. We are aware that some statutes recognize the father
under certain circumstances. North Carolina, for example, N.C.Gen.Stat. 1445.1 (Supp.1971), requires written permission for the abortion from the
husband when the woman is a married minor, that is, when she is less than 18
years of age, 41 N.C.A.G. 489 (1971); if the woman is an unmarried minor,
written permission from the parents is required. We need not now decide
whether provisions of this kind are constitutional.

Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733, 83

S.Ct., at 1032.
2

There is no constitutional right of privacy, as such. '(The Fourth) Amendment

protects individual privacy against certain kinds of governmental intrusion, but
its protections go further, and often have nothing to do with privacy at all.
Other provisions of the Constitution protect personal privacy from other forms
of governmental invasion. But the protection of a person's general right to
privacy-his right to be let alone by other people-is like the protection of his
property and of his very life, left largely to the law of the individual States.'
Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct. 507, 510-511, 19
L.Ed.2d 576 (footnotes omitted).

This was also clear to Mr. Justice Black, 381 U.S., at 507, (dissenting opinion);
to Mr. Justice Harlan, 381 U.S., at 499, 85 S.Ct., at 1689 (opinion concurring in
the judgment); and to Mr. Justice White, 381 U.S., at 502, 85 S.Ct., at 1691
(opinion concurring in the judgment). See also Mr. Justice Harlan's thorough
and thoughtful opinion dissenting from dismissal of the appeal in Poe v.
Ullman, 367 U.S. 497, 522, 81 S.Ct. 1752, 1765, 6 L.Ed.2d 989.

Jurisdictions having enacted abortion laws prior to the adoption of the

Fourteenth Amendment in 1868:
1. Alabama-Ala.Acts, c. 6, 2 (1840).
2. Arizona-Howell Code, c. 10, 45 (1865).
3. Arkansas-Ark.Rev.Stat., c. 44, div. III, Art. II, 6 (1838).
4. California-Cal.Sess.Laws, c. 99, 45, p. 233 (1849-1850).
5. Colorado (Terr.)-Colo.Gen.Laws of Terr. of Colo., 1st Sess., 42, pp. 296297 (1861).
6. Connecticut-Conn.Stat. Tit. 20, 14, 16 (1821). By 1868, this statute had
been replaced by another abortion law. Conn.Pub.Acts, c. 71, 1, 2, p. 65
(1860).
7. Florida-Fla.Acts 1st Sess., c. 1637, subs. 3, 10, 11, subc. 8, 9, 10, 11
(1868), as amended, now Fla.Stat.Ann. 782.09, 782.10, 797.01, 797.02,
782.16 (1965).
8. Georgia-Ga.Pen.Code, 4th Div., 20 (1833).
9. Kingdom of Hawaii-Hawaii Pen.Code, c. 12, 1, 2, 3 (1850).

10. Idaho (Terr.)-Idaho (Terr.) Laws, Crimes and Punishments 33, 34, 42,
pp. 441, 443 (1863).
11. Illinois-Ill.Rev. Criminal Code 40, 41, 46, pp. 130, 131 (1827). By 1868,
this statute had been replaced by a subsequent enactment. Ill.Pub.Laws 1, 2,
3, p. 89 (1867).
12. Indiana-Ind.Rev.Stat. 1, 3, p. 224 (1838). By 1868 this statute had been
superseded by a subsequent enactment. Ind.Laws, c. LXXXI, 2 (1859).
13. Iowa (Terr.)-Iowa (Terr.) Stat. 1st Legis., 1st Sess., 18, p. 145 (1838). By
1868, this statute had been superseded by a subsequent enactment. Iowa (Terr.)
Rev.Stat., c. 49, 10, 13 (1843).
14. Kansas (Terr.)-Kan. (Terr.) Stat., c. 48, 9, 10, 39 (1855). By 1868, this
statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c.
28, 9, 10, 37 (1859).
15. Louisiana-La.Rev.Stat., Crimes and Offenses 24, p. 138 (1856).
16. Maine-Me.Rev.Stat., c. 160, 11, 12, 13, 14 (1840).
17. Maryland-Md.Laws, c. 179, 2, p. 315 (1868).
18. Massachusetts-Mass.Acts & Resolves, c. 27 (1845).
19. Michigan-Mich.Rev.Stat., c. 153, 32, 33, 34, p. 662 (1846).
20. Minnesota (Terr.)-Minn. (Terr.) Rev.Stat., c. 100, 10, 11, p. 493 (1851).
21. Mississippi-Miss.Code, c. 64, 8, 9, p. 958 (1848).
22. Missouri-Mo.Rev.Stat., Art. II, 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.)-Mont. (Terr.) Laws, Criminal Practice Acts 41, p. 184
(1864).
24. Nevada (Terr.)-Nev. (Terr.) Laws, c. 28, 42, p. 63 (1861).
25. New Hampshire-N.H.Laws, c. 743, 1, p. 266 (1848).
26. New Jersey-N.J.Laws, p. 266 (1849).
27. New York-N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, 8, 9, pp. 12-13 (1828). By
1868, this statute had been superseded. N.Y.Laws, c. 260, 1, 2, 3, 4, 5, 6, pp.

285-286 (1845); N.Y.Laws, c. 22, 1, p. 19 (1846).

28. Ohio-Ohio Gen.Stat. 111(1), 112(2), p. 252 (1841).
29. Oregon-Ore.Gen.Laws, Crim.Code, c. 43, 509, p. 528 (1845-1964).
30. Pennsylvania-Pa.Laws No. 374 87, 88, 89 (1860).
31. Texas-Tex.Gen.Stat.Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White
1859).
32. Vermont-Vt.Acts No. 33, 1 (1846). By 1868, this statute had been
amended. Vt.Acts No. 57, 1, 3 (1867).
33. Virginia-Va.Acts, Tit. II, c. 3, 9, p. 96 (1848).
34. Washington (Terr.)-Wash. (Terr.) Stats., c. II, 37, 38, p. 81 (1854).
35. West Virginia-Va.Acts, Tit. II, c. 3, 9, p. 96 (1848).
36. Wisconsin-Wis.Rev.Stat., c. 133, 10, 11 (1849). By 1868, this statute
had been superseded. Wis.Rev.Stat., c. 164, 10, 11; c. 169, 58, 59 (1858).
2

Abortion laws in effect in 1868 and still applicable as of August 1970:

1. Arizona (1865).
2. Connecticut (1860).
3. Florida (1868).
4. Idaho (1863).
5. Indiana (1838).
6. Iowa (1843).
7. Maine (1840).
8. Massachusetts (1845).
9. Michigan (1846).
10. Minnesota (1851).
11. Missouri (1835).

12. Montana (1864).

13. Nevada (1861).
14. New Hampshire (1848).
15. New Jersey (1849).
16. Ohio (1841).
17. Pennsylvania (1860).
18. Texas (1859).
19. Vermont (1867).
20. West Virginia (1848).
21. Wisconsin (1858).